Nadine Carroll v The Australian Electoral Commission
[2025] FWC 10
•6 JANUARY 2025
| [2025] FWC 10 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nadine Carroll
v
The Australian Electoral Commission
(U2024/12402)
| COMMISSIONER SLOAN | SYDNEY, 6 JANUARY 2025 |
Application for an unfair dismissal remedy – application filed out of time – extension of time for filing sought – extension refused
Nadine Carroll was employed as a Temporary Office Assistant with the Australian Electoral Commission. She was engaged on a casual basis.
On 11 July 2024, Ms Carroll received an email from the AEC. The email “officially confirmed” that “due to operational requirements the AEC [was] in the process of offboarding staff” and that Ms Carroll had been “included in this round of offboarding”.
Ms Carroll did not take well to being “offboarded”. She sent an email to the AEC the next day. Ms Carroll described it as a “very emotive email”. The email was not in evidence.
On 15 July 2024, Ms Carroll made a request to the AEC under the Freedom of Information Act 1982. She requested access to all documentation relating to her employment with the AEC, including the reasons for the decision to bring her employment to an end (“FOI Request”). The FOI Request was the subject of email correspondence between Ms Carroll and the “FOI Team” at the AEC between 18 July 2024 and 5 September 2024.
In the meantime, on 17 July 2024, Ms Carroll received an email from Rebecca Main, the AEO and State Manager NSW/ACT for the AEC, responding to her email of 12 July 2024. The email stated that Ms Main had arranged for an investigation to be undertaken into Ms Carroll’s concerns and that the AEC would “make contact in the coming days to get further details”.
Ms Main sent Ms Carroll a further email on 21 August 2024. It thanked Ms Carroll for her willingness to discuss her concerns with Rebekah Mowatt, the Assistant Director Operations for the AEC. It stated that the review of the behaviours described in Ms Carroll’s correspondence and in her discussion with Ms Mowatt was ongoing and that the AEC would provide an update in due course.
On 16 September 2024, the AEC provided Ms Carroll with its decision regarding her FOI Request. It advised that it had identified 16 documents falling within the scope of the FOI Request. Of these, Ms Carroll was to be given access in full to five and access to edited copies of the remaining eleven. The AEC provided Ms Carroll with the documents by attaching them to the decision.
On the same day, Ms Carroll sent an email to Ms Main. She stated that she had received documents in response to her FOI Request, but none of them provided an explanation as to why she had been dismissed. She expressed disbelief that there would be no record of a decision that led to an employee “being fired”. She expressed confusion as to why she had been dismissed, called into question the process that resulted in it and speculated that she had been selected for dismissal as she worked for a supervisor who was “constantly butting heads with staff who were at a higher level”.
There is no evidence that Ms Main responded to that email.
On 17 October 2024, Ms Carroll filed an unfair dismissal application with the Fair Work Commission.[1]
The issue that arises
An unfair dismissal application must be made within 21 days of the dismissal, unless the Commission allows a further period.[2] In this case, the 21-day period expired on 1 August 2024. It follows that Ms Carroll requires the Commission to allow her an extension of time to file the application. She applies for such an extension.
The AEC opposes the extension application.
What questions do I need to answer?
The Commission may only allow Ms Carroll an extension of time if it is satisfied that there are “exceptional circumstances”, taking into account:[3]
a.the reason for the delay. The “delay” is the period between the end of the 21-day period and the filing of the application.[4] In this case, 77 days;
b.whether Ms Carroll first became aware of the dismissal after it had taken effect. This factor allows the Commission to have regard to whether there was a delay in Ms Carroll being informed of her dismissal, which may account for the delay in filing the application;
c.any action taken by Ms Carroll to dispute the dismissal. It will be relevant if an employee has taken action to dispute their dismissal, other than by making an unfair dismissal application. It will show, and put the employer on notice, that the employee actively challenges their dismissal. This may support an extension of time; [5]
d.prejudice to the AEC (including prejudice caused by the delay);
e.the merits of the unfair dismissal application. That is, the prospects of Ms Carroll succeeding on her claim; and
f.fairness as between Ms Carroll and other persons in a like position.
Circumstances will be “exceptional” if they are out of the ordinary course, or unusual, or special, or uncommon. They do not need to be unique, or unprecedented, or very rare.[6] Exceptional circumstances may include:
a.a single exceptional matter;
b.a combination of exceptional factors; or
c.a combination of ordinary factors which, when taken together, are seen as exceptional.[7]
The test of “exceptional circumstances” establishes a high hurdle for a person seeking an extension.[8] The onus is on Ms Carroll to demonstrate that exceptional circumstances exist.[9]
But a finding that exceptional circumstances exist is not the end of the matter. The Commission still has a discretion whether to allow an extension of time.[10]
Therefore, two questions arise:
a.Do exceptional circumstances exist in this matter, taking into account the criteria at [13] above?
b.If so, should I exercise my discretion to allow Ms Carroll an extension of time?
The answer to the first question is no. It is not necessary to consider the second.
Why I have found that the circumstances are not exceptional
I will explain my decision by reference to the criteria at [13] above.
There was no reasonable or acceptable explanation for the delay
The reason for the delay does not itself need to be exceptional. It is just one of the factors to be taken into account. However, a credible explanation for the entirety of the delay will usually assist an applicant. On the other hand, the absence of an explanation for the delay (or part of it) will generally count against them.[11]
Ms Carroll’s reasons for the delay can be distilled into three propositions. I will deal with them in turn.
First, Ms Carroll claimed that she was unaware of the statutory time limit. This is not of itself unbelievable, but it does not assist Ms Carroll. It is well established that ignorance of the statutory time limit does not support a finding of exceptional circumstances.[12]
Second, Ms Carroll sought to attribute responsibility for the delay to the AEC. This has two parts. The first is an asserted delay by the AEC in responding to, and ultimately failing to close off on, the concerns that she had raised in her email of 12 July 2024 and in her discussion with Ms Mowatt. The second is the time taken by the AEC to provide its response to her FOI Request. Neither provides an acceptable reason for the delay.
There is nothing in the evidence to suggest that Ms Carroll informed the AEC that she was contemplating making an unfair dismissal application, and that she was looking to the AEC to provide an outcome to prevent her doing so. In any event, nothing precluded Ms Carroll from commencing proceedings to protect her position while any discussions continued.[13]
As to the FOI Request, Ms Carroll’s case was not so much that she was waiting for the documents prior to making her unfair dismissal claim. It was rather that until she saw those documents, and the apparent lack of reasons for her dismissal, she was not aware that she had the basis for making an unfair dismissal claim.
There was no undue delay on the part of the AEC in dealing with the FOI Request. It appears to have done so in accordance with its obligations under the Freedom of Information Act, including that it provide Ms Carroll with its decision on the FOI Request within 30 days of it having been made.
But as the AEC submitted, a more fundamental issue arises. To allow Ms Carroll to rely on the FOI Request to explain the delay places the AEC (and arguably, any employer subject to the FOI regime) at a disadvantage. If I were to find that the time waiting for a response to the FOI Request explained the delay, there are at least two consequences. First, the AEC would need to prioritise FOI requests where there was a risk that an unfair dismissal application might be brought, a burden not contemplated by the Freedom of Information Act. It would effectively be deprived of the 30-day period allowed by that Act. Second, in the alternative, the making of an FOI request would allow employees to circumvent and undermine the statutory time period to make an unfair dismissal application.
There is an additional consideration. Ms Carroll received documents in response to her FOI Request on 16 September 2024. On the same day, she was able to write to Ms Main expressing her disappointment at what they failed to disclose. Why then did it take Ms Carroll a further 31 days to file her unfair dismissal application?
This leads to Ms Carroll’s third reason for the delay, namely her mental health. Ms Carroll raised this ground for the first time in her material in reply. She stated at the hearing that she was in “absolute shock at the manner of her dismissal”. It left her feeling “frozen, like having a breakdown”. She consulted her general practitioner and a psychiatrist. She further stated that on several occasions she started to prepare the unfair dismissal application but could not proceed due to the state of her mental health.
Ms Carroll relied on two documents to attest to the state of her mental health after her dismissal. The first was a medical report by Dr Rebecca Wood, a Consultant Psychiatrist. Dr Wood stated that she had seen Ms Carroll in August 2024 and that at that time Ms Carroll was suffering from “an acute stress disorder”. Significantly, Dr Wood stated that Ms Carroll had these symptoms “for about 4 weeks” following her dismissal. She expressed the opinion that “her mental state immediately after the dismissal was major contributor [sic] to the reason she lodged this claim several weeks after the event” (my emphasis).
The second document was described as a “medical certificate” from Dr Jasmine Somaiya, Ms Carroll’s general practitioner. It states only that Ms Carroll attended a medical appointment with her on 22 July 2024. The document corroborates Ms Carroll’s evidence that she sought medical treatment after her dismissal. It has little other probative value.
Ms Carroll’s medical evidence might suggest some period of incapacity following her dismissal. However, at its highest it is limited in time to a period of four weeks. It does not explain the entire delay.
Further, and significantly, in the four-week period to which Dr Wood referred, Ms Carroll was able to write to the AEC raising concerns as to her dismissal and make the FOI Request. She was thereafter able to engage with the AEC in respect of both her concerns and the FOI Request. This suggests some level of capacity.
Overall, I am not satisfied that Ms Carroll has provided a reasonable or acceptable explanation for the delay. This argues against a finding of exceptional circumstances.
Ms Carroll was informed of her dismissal on the day it took effect
Ms Carroll was notified of her dismissal on the day it took effect. She had the full benefit of the 21-day period. This does not support a finding of exceptional circumstances.
Ms Carroll took action to dispute her dismissal
Ms Carroll appears to have disputed her dismissal on the day after it was effected. This provides some support for a finding of exceptional circumstances.
Is there evidence of prejudice to the AEC?
The AEC’s submissions regarding prejudice centred on the disadvantage that would be placed on the AEC (and other employers subject to the FOI regime) were the Commission to find that the making of the FOI Request provided an explanation for the delay. To my mind, these submissions went more to the reasons for the delay, rather than prejudice. I have dealt with them accordingly at [27] above.
The AEC did not otherwise identify any particular prejudice that it would suffer prejudice were I to grant Ms Carroll an extension of time. I might be able to infer some prejudice, in that the AEC would be denied the benefit of the limitation period.[14] But the absence of prejudice would not of itself support a finding that exceptional circumstances exist.[15] This factor argues neither for nor against a finding of exceptional circumstances.
What are the merits of the unfair dismissal application?
For present purposes, it is sufficient for Ms Carroll to show that her unfair dismissal claim has some merit. The greater the merit, the more weight will be given to this factor.[16] However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.[17]
In short, Ms Carroll contended that she worked at the AEC over several years and had only ever received positive feedback. She claimed that the email informing her of her dismissal came without warning and provided no reason for the dismissal. The perceived failure by the AEC to treat her with respect and to explain its decision to terminate her employment is at the heart of Ms Carroll’s complaint. She suggested that the motivation for her dismissal was an office rumour (I do not need to go into the details).
For its part, the AEC contended that the termination of Ms Carroll’s employment was consistent both with her employment contract and her casual status. It submitted that in July 2024 it conducted a routine audit of all casual employees engaged to work at the office on which Ms Carroll was engaged. The apparent purpose of the audit was to remove “inactive” employees from the “pool” of casual employees that may be offered shifts at that office. Ms Carroll was identified as inactive, as she had not worked at the office for nearly 15 weeks as at the time of the audit. Ms Carroll was one of 10 casual employees whose contracts were terminated at the same time.
In the absence of a hearing of the evidence in this matter, it is not possible for me to make a firm assessment of the merits. I have determined that this factor argues neither for nor against a finding of exceptional circumstances.
Fairness as between Ms Carroll and other persons in a similar position
This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, to ensure fairness as between an applicant and other persons in a similar position. That consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[18]
Ms Carroll did not draw my attention to matters currently or previously before the Commission in which the applicant is or was in a position analogous to hers. I am unaware of any.
I am not satisfied that Ms Carroll has been able to demonstrate that her matter is so sufficiently different to like matters in extension of time hearings which have come before the Commission that I should treat it differently. I think it would be unfair to other applicants whose applications for extensions of time have been refused to treat Ms Carroll in a different manner. This weighs against the finding of exceptional circumstances.
Conclusion
Having regard to the matters discussed above, I am not satisfied that exceptional circumstances exist. It follows that there is no basis on which I can grant Ms Carroll the extension of time she seeks.
Ms Carroll’s request for an extension of time to file her unfair dismissal application is refused.
COMMISSIONER
Appearances:
Nadine Carroll, the Applicant
Michael Bayne and Melahni Dean, for the Respondent
Hearing details:
16 December
Sydney (by video)
2024
[1] The application was made under Part 3-2 of the Fair Work Act 2009 (“Act”). Unless otherwise stated, all references in this decision to legislative provisions are references to provisions of the Act.
[2] Section 394(2)
[3] Section 394(3). The requirement to take these matters into account means that each of them must be treated as significant to the decision-making process and given appropriate weight: see for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19] and [39]
[4] Long v Keolis Downer t/a Yarra Trams[2018] FWCFB 5109 at [40]
[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300
[6] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]
[7] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]
[8] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[9] Romic v Blacktown City Council[2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services[2010] FWA 1798.
[10] Halls v McCardle and Ors [2017] FCCA 316, cited in Nikhil Challa v Australia and New Zealand Banking Group Limited t/as ANZ Bank[2017] FWCFB 436 at [16]
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [39]
[12] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [14]
[13] Z Gao v Department of Human Services[2011] FWAFB 5605 at [10]
[14] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 544 (Dawson J)
[15] Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890 at [21]
[16] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [71]
[17] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72]
[18] Todd Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963 at [41]
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